Franklins Ltd v Burns; Burns v Franklins Ltd

[2005] NSWCA 54

CITATION:	Franklins Limited v Burns; Burns v Franklins Limited [2005] NSWCA 54
HEARING DATE(S):	21 February 2005
JUDGMENT DATE:	11 March 2005
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; McColl JA at 3
DECISION:	(1) Defendant's appeal dismissed with costs. (2) Plaintiff's appeal allowed as to grounds 4 and 5, but otherwise dismissed. (3) The parties to have leave (if they so desire) to bring in within 14 days of the date of these orders Short Minutes of Order calculating, on the basis of the reasons given, the amount the plaintiff ought to have been awarded by way of damages for future domestic assistance. (4) Plaintiff to pay the costs of grounds 1 - 3 of her Notice of Appeal, such costs to be limited to the preparation of the written submissions relating to these grounds of appeal. (5) Defendant to pay the costs of grounds 4 and 5 of the plaintiff's Notice of Appeal, such costs to be limited to the preparation of the written submissions relating to these grounds of appeal.

CATCHWORDS:	DAMAGES - non-economic loss - future economic loss - past and present domestic assistance - DISTRICT COURT - jurisdictional limit (D)
LEGISLATION CITED:	District Court Act 1973 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW)
CASES CITED:	Ahmedi v Ahmedi (1991) 23 NSWLR 288 CSR Limited & Anor v Thompson [2003] NSWCA 329; (2003) 59 NSWLR 77 Dell v Dalton (1991) 23 NSWLR 528 Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports 81-695 Donald v McKeown [2004] NSWCA 285 Dubbo Stock & Station Agents Pty Ltd v Laws [2004] NSWCA 336 Ghunaim v Bart; [2004] NSWCA 28; (2004) Aust Torts Reports 81-731 Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 Griffiths v Kerkemeyer (1979) 139 CLR 161; (1977) 15 ALR 387 House v The King [1936] HCA 40; (1936) 55 CLR 499 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Jones v Bradley [2003] NSWCA 81 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Matchan v Lyons (2003) 40 MVR 466; (2003) NSWCA 384 Moran v McMahon (1985) 3 NSWLR 700; (1985) Aust Torts Reports 80-762 Planet Fisheries Pty Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Roads & Traffic Authority of New South Wales v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249 Southgate v Waterford (1990) 20 NSWLR 427 Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 319 Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
PARTIES:	Franklins Limited (Appellant/Respondent) Kym Burns (Appellant/Respondent)
FILE NUMBER(S):	CA 40051/04; 40016/04
COUNSEL:	M J Joseph SC/B Dooley (Franklins) (Appellant/Respondent) S Norton SC/M M Fraser (Burns) (Appellant/Respondent)
SOLICITORS:	Sparke Helmore (Franklins) (Appellant/Respondent) Bryden's Law Office (Burns) (Appellant/Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 12247/01
LOWER COURT JUDICIAL OFFICER:	Hungerford ADCJ

CA 40051/04; 40016/04
DC 12247/01

BEAZLEY JA
TOBIAS JA
McCOLL JA

Friday, 11 March 2005

FRANKLINS LIMITED v BURNS

BURNS v FRANKLINS LIMITED

FACTS

The plaintiff was employed as an aisle controller/packer at the defendant store in the Westfield Shopping Complex at Liverpool. She fell off a ladder on which she was standing while performing her duties. She suffered a fracture to the neck of the talus in her ankle. She was subsequently diagnosed as suffering from Reflex Sympathetic Dystrophy, a condition that is difficult to treat and has continuing long term and permanent effects.

In proceedings commenced by statement of claim filed on 21 November 2001, the primary judge held that the plaintiff was entitled to a verdict against the defendant of $910,658.00. That sum exceeded the jurisdictional limit in s 44(1)(a)(ii) of the District Court Act 1973 (NSW). The primary judge rejected the plaintiff’s argument that s 44(1)(d1) which was inserted in the District Court Act 1973 (NSW) by sub-clause [2] of cl 1.3 of Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (the “2001 Act”) (which commenced on 1 January 2002) applied to give him unlimited jurisdiction. He entered judgment in the plaintiff’s favour in the sum of $750,000.

Both parties appealed. The plaintiff complained that the primary judge erred in holding that the jurisdictional limit of the Court was $750,000.00. She also challenged the hourly rate the primary judge applied to calculate damages for future domestic assistance. The defendant challenged the primary judge’s award of damages under the heads of non-economic loss, future economic loss and past and future domestic assistance.

HELD per McColl JA ( Beazley and Tobias JJA agreeing) dismissing the defendant’s appeal and dismissing the plaintiff’s appeal, save as to grounds 4 and 5.

1. The determination of the severity of a plaintiff’s non-economic loss for the purposes of s 151G Workers Compensation Act 1987 (NSW) involves an exercise of a discretion, with which the court will rarely intervene.

House v The King [1936] HCA 40; (1936) 55 CLR 499; Moran v McMahon (1985) 3 NSWLR 700; (1985) Aust Torts Reports 80-762; Southgate v Waterford (1990) 20 NSWLR 427; Jones v Bradley [2003] NSWCA 81; Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81-695; Ghunaim v Bart [2004] NSWCA 28; (2004) Aust Torts Reports 81-73 referred to.

2. The determination of the plaintiff’s non-economic loss as being 80% of a most “extreme case” involved an exercise which was insusceptible to entirely logical exposition.

Southgate v Waterford (1990) 20 NSWLR 427; Dell v Dalton (1991) 23 NSWLR 528 referred to.

Future Economic Loss

3. The assessment of damages for future economic loss involves reference to future or hypothetical events and is necessarily an imprecise matter of estimation, carried out within broad parameters.

Graham v Baker [1961] HCA 48; (1961) 106 CLR 340; Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; Ahmedi v Ahmedi (1991) 23 NSWLR 288; Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138; CSR Limited & Anor v Thompson [2003] NSWCA 329; (2003) 59 NSWLR 77; Donald v McKeown [2004] NSWCA 285 referred to.

Domestic Assistance

4. The amount to which a plaintiff is entitled by way of compensation for accident caused need may include amounts for services provided to members of the family prior to accident.

Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 349 applied. Griffiths v Kerkemeyer (1979) 139 CLR 161; (1977) 15 ALR 387; Roads & Traffic Authority of New South Wales v Lolomanaia [2001] NSWCA 268; 2001 34 MVR 249; Matchan v Lyons (2003) 40 MVR 466; (2003) NSWCA 384, CSR Limited v Clydesdale [2003] NSWCA 339 considered.

Jurisdictional Issue

5. The primary judge did not err in concluding that s 44(1)(d1) of the District Court Act 1973 (NSW) did not apply to the plaintiff’s action. That section stated in substance, that amendments made by Schedule 1 to the 2001 Act applied in respect of recovery of damages after the commencement of the amendment but did not apply in respect of recovery of damages of proceedings for their recovery were commenced in a court before the commencement of the amendment. Clause 9(1), Schedule 6 Part 18C Workers Compensation Act 1987.

Dubbo Stock & Station Agents Pty Limited v Laws [2004] NSWCA 336 referred to.

(1) Defendant’s appeal dismissed with costs.

(2) Plaintiff’s appeal allowed as to grounds 4 and 5, but otherwise dismissed.

(3) The parties to have leave (if they so desire) to bring in within 14 days of

the date of these orders Short Minutes of Order calculating, on the basis of the reasons given, the amount the plaintiff ought to have been awarded by way of damages for future domestic assistance.

(4) Plaintiff to pay the costs of grounds 1 – 3 of her Notice of Appeal, such costs to be limited to the preparation of the written submission relating to these grounds of appeal.

(5) Defendant to pay the costs of grounds 4 and 5 of the plaintiff’s Notice of Appeal, such costs to be limited to the preparation of the written submission relating to these grounds.

***********

CA 40051/04; 40016/04
DC 12247/01

BEAZLEY JA
TOBIAS JA
McCOLL JA

Friday, 11 March 2005

FRANKLINS LIMITED v BURNS

BURNS v FRANKLINS LIMITED

Judgment

1 BEAZLEY JA: I agree with McColl JA.

2 TOBIAS JA: I agree with McColl JA.

3 McCOLL JA: On 16 December 2003, Hungerford ADCJ held that the plaintiff was entitled to a verdict against the defendant of $910,658.00 arising out of the defendant’s breach of its duty of care towards her. That sum exceeded the jurisdictional limit in s 44(1) of the District Court Act 1973 (NSW). Accordingly, his Honour entered a judgment in the plaintiff’s favour for $750,000.00. His Honour ordered the defendant to pay the plaintiff’s costs.

4 Both parties have appealed from that decision. The plaintiff complains that the primary judge erred in holding that the jurisdictional limit of the Court in the proceedings was $750,000.00. She also challenges the hourly rate the primary judge applied to calculate damages for future domestic assistance.

5 The defendant appealed challenging the primary judge’s finding that it had breached its duty of care and also complaining about the primary judge’s award of damages under the heads of non-economic loss, future economic loss and past and future domestic assistance. The appeal on liability was abandoned in the defendant’s written submissions filed in May 2004.

6 The plaintiff’s proceedings were commenced on 21 November 2001. Accordingly, her damages were to be assessed pursuant to Pt 5 of the Workers Compensation Act 1987 (NSW) (the “1987 Act”) prior to the amendments to that Act effected by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (the “2001 Act”).

Statement of the case

7 The plaintiff was employed as an aisle controller/packer at the defendant’s store in the Westfield Shopping Complex at Liverpool. Her job was to fill the shelves with stock. On 1 March 2001 at about 11.00 am she was standing on a ladder performing her duties. The ladder moved suddenly and she fell to the floor. As a result of her fall she suffered a fracture to the neck of the talus in her ankle. She also suffered some injuries to her head and left shoulder but those had resolved by the time of trial and were not the subject of her claim for damages.

8 The ankle fracture was treated by the fitting of a plaster cast below the plaintiff’s left knee. When the cast was removed the plaintiff’s ankle and foot were discoloured having a bluish-grey colour. They were also swollen. The plaintiff said, and the primary judge accepted, that thereafter her foot was always very cold, very painful and, if it was touched, she “felt like passing out and being sick”.

9 Because of the pain in her foot the plaintiff started to use crutches. At the time of the trial she was still using those crutches at home and for outings over short distances. About twelve months after the accident she also started to use a wheel chair apparently because the use of the crutches had caused pain in her right kneecap in taking the weight.

10 The plaintiff is allergic to pain medication and, accordingly, was unable to alleviate the pain she was suffering in her left leg.

11 Doctor Giblin, an orthopaedic surgeon the plaintiff had consulted a fortnight or so after her accident, opined that as a consequence of the fracture the plaintiff had developed secondary Sudek’s Atrophy. According to an extract from Stedman’s Medical Dictionary provided to the Court by the plaintiff’s legal representatives (with which the defendant’s legal representatives did not take issue) Sudek’s Atrophy is an atrophy of bones, commonly of the carpal or tarsal bones following a slight injury such as a sprain.

12 Doctor Giblin referred the plaintiff to Doctor Salmon a consultant in pain medicine. He expressed the opinion that the plaintiff had a Complex Regional Pain Syndrome Type 1 of the lower limb. Doctor Ibrahim diagnosed the plaintiff as suffering from Reflex Sympathetic Dystrophy. Reflex Sympathetic Dystrophy is, according to Stedman’s Medical Dictionary, “diffuse persistent pain usually in an extremity often associated with vasomotor disturbances, trophic changes, and limitation or immobility of joints; frequently follows some local injury”. The primary judge concluded that Reflex Sympathetic Dystrophy is a condition which is difficult to treat and has continuing long-term or even permanent effects.

13 The primary judge found that prior to the accident the plaintiff was outgoing and enjoyed relatively good health and was active in sporting and recreational activity. While she had worked part time for twenty hours a week prior to the accident, her husband was in full time employment. She also had undertaken the domestic duties in the family home with little assistance from her husband.

14 The primary judge held the plaintiff was permanently and totally incapacitated for work. His Honour also held that she required continuing care and support in the domestic situation. She also needed pain management and psychological counselling on a regular weekly basis. As a result of the accident the family relationships had become strained as the plaintiff experienced depression, anxiety and mood swings. She and her husband slept in separate rooms due to the continuous foot and ankle pain from which she suffered and the need that they not be touched.

15 Following the accident the plaintiff was unable to perform the domestic duties she had previously undertaken. Her husband performed most of the tasks around the home, such as vacuuming, cooking, cleaning, washing and assisting with the shopping. Otherwise paid domestic assistance had been provided by the defendant’s workers compensation insurer to the extent of five hours a week from about six months after the accident reducing to four hours a week by the time of trial. The primary judge held that the plaintiff would be unable to perform her domestic duties for the rest of her life.

16 The plaintiff claimed damages for economic loss on the basis that, had she not been injured she would have gained full time employment.

17 The plaintiff’s work history showed that she had worked full time for a great deal of her working life. She had spent ten years out of the workforce while raising her three children but had returned to the workforce when her eldest child was six years old. At the beginning of 2001 she had sought full time employment from the defendant but had not procured such a position by the time of her accident.

18 In April 2001 the defendant announced that it had sold its stores. The sale was apparently effected in November 2001. The primary judge concluded that but for her injury the plaintiff would probably have continued her part time employment with the defendant working twenty hours a week until the end of 2001 and then obtained a full time position in a similar occupation with either Coles or Woolworths or the new operators of the Franklins chain of stores as from the beginning of 2002.

Award of damages at trial
Non-economic loss

19 The primary judge assessed the severity of the plaintiff’s non-economic loss for the purpose of s 151G of the 1987 Act at 80% of a most extreme case. The maximum amount which could be awarded for non-economic loss as prescribed by s 151G(3) of that Act at the time the plaintiff was injured was $246,900. Accordingly, his Honour awarded the plaintiff $197,520 for non-economic loss.

Future economic loss

20 The primary judge rejected the defendant’s submission that the plaintiff had some residual work capacity. He also rejected the defendant’s submission that the plaintiff would not have obtained full time employment. His Honour calculated the plaintiff’s future earning loss at $450 net per week - a figure apparently based on the assumption of a forty-hour week at the hourly rate the plaintiff had received in her part time employment. After deducting 15% for vicissitudes he awarded the plaintiff $230,571 for future economic loss.

Domestic assistance

21 The issue of domestic assistance was a major contention between the parties.

22 The amount which the defendant’s workers compensation insurer had expended in providing paid care for the plaintiff was agreed and was included in the damages award.

23 There were two key controversies between the parties concerning the plaintiff’s Griffiths v Kerkemeyer claim.

24 The first controversy concerned whether the primary judge could award the plaintiff damages pursuant to Griffiths v Kerkemeyer which included sums referable to the domestic assistance the plaintiff could no longer provide for the benefit of her husband and her 23 year-old son.

25 The second lay in the extent of the claim: the plaintiff sought an allowance of 35 hours a week for past and future gratuitous domestic care services.

26 There was also an issue before the primary judge concerning the hourly rate his Honour could rely upon to calculate any damages for domestic assistance for the future. Before the primary judge the defendant had submitted, and the primary judge accepted, that he was limited to a rate of $19 per hour pursuant to s 151K of the 1987 Act. In its written submissions on appeal the defendant accepted that the primary judge was incorrect in adopting that rate insofar as it assumed that any future domestic care was to be delivered by a paid service provider. The defendant conceded that the appropriate hourly rate for paid service should have been $22 per hour.

27 The primary judge rejected the defendant’s submission that any damages he awarded in respect of domestic assistance could not include amounts referable to the domestic assistance the plaintiff had provided to her husband and son prior to her accident. He held that he was entitled to include such amounts because of Mason P’s judgment in Sullivan v Gordon [1999] NSWCA 338; (1999) 47 NSWLR 349 where (at p 322 [2]) his Honour said:

“For many women and some men, their own needs extend to care for other members of the family as naturally as they extend to the capacity to attend to their own personal functions. There is no distinction in point of principle … indeed, to draw the distinction only serves to discriminate against those who devote themselves to the care of others within the family household (usually women) to the benefit of the wrongdoer …”.

28 The plaintiff’s claim for 35 hours care was based on the average number of hours she had recorded for this purpose in a diary she kept of her husband’s activities. Counsel for the defendant submitted that that diary gilded the lily as demonstrated by his cross-examination of Mr Burns.

29 After the plaintiff’s accident her husband reduced his working hours to 20 hours a week to care for her. By the time of trial he said he was working up to 30 to 35 hours a week.

30 There was competing evidence concerning the plaintiff’s need for future assistance. An occupational therapist, Ms Margaret Kennedy-Gould reviewed the plaintiff’s position after visiting her home. In her final report she estimated that the minimum requirement for the plaintiff’s domestic assistance in the future would be 8 hours a week for cleaning and shopping on the basis that the plaintiff could manage to undertake some of the lighter home duties using her wheelchair in the house as suitably modified.

31 The defendant’s consultant, occupational therapist, Ms Margie MacMaster recommended that the plaintiff be given “attendant care” of two hours a week for heavy cleaning and opined that Ms Kennedy-Gould’s recommendation of 8 hours a week was excessive.

32 Faced with the divergent claims, on the plaintiff’s part for 35 hours a week, on the defendant’s limited to two hours a week, the primary judge took a Solomonic approach.

33 While he acknowledged his earlier finding that the plaintiff’s capacity to perform household duties was severely limited as a result of the accident, he nevertheless concluded that that position might improve as the counselling the plaintiff was receiving for her pain became more effective and, too, as wheelchair access was made available to her house. His Honour also noted that Mr Burns’ working hours had increased (a finding from which I infer that in his Honour’s view Mr Burns would no longer be able to undertake domestic assistance to the extent recorded in the diary) and the fact that all of the plaintiff’s children were adults with only one still residing at home.

34 Taking this approach his Honour allowed twenty-one hours a week for gratuitous domestic care assistance for the past and fourteen hours a week for the future.

35 On that basis he awarded the plaintiff $68,234 for past domestic assistance, a sum comprised of $13,424 for the past paid care provided by the defendant’s workers compensation insurer which the parties had agreed, and $54,810 calculated at a rate of twenty one hours a week for one hundred and forty five weeks at $18 an hour.

36 For the future, based on a life expectancy of thirty-six years, but with no deduction for vicissitudes, his Honour awarded $235,357.

The jurisdictional limit

37 Taking into account the other sums his Honour had awarded the plaintiff but which are not the subject of the defendant’s appeal, the primary judge concluded that the plaintiff was entitled to a verdict against the defendant in the sum of $910,658.00.

38 Counsel for the defendant submitted that, although the Court could find a verdict in excess of the statutory limitation in s 44(1)(a)(ii) of the District Court Act 1973 of $750,000.00, it had no jurisdiction to enter judgment for any greater amount.

39 Counsel for the plaintiff submitted that the primary judge could enter a judgment in the plaintiff’s favour for the $910,658.00 on the basis that the plaintiff’s action was a “work injury damages claim” to which the unlimited jurisdiction of s 44(1)(d1) of the District Court Act applied.

40 Section 44 of the District Court Act relevantly provides:

“44 Actions

(1) Subject to this Act, the Court has jurisdiction to hear and dispose of the following actions:

(a) any action of a kind:

…

(ii) in which the amount claimed does not exceed $750,000, whether on a balance of account or after an admitted set-off or otherwise,

….

(d1) any work injury damages claim, irrespective of the amount claimed…”

41 The primary judge rejected the plaintiff’s counsel’s submissions.

42 He noted that s 44(1)(d1) was inserted in the District Court Act by sub-clause [2] of cl 1.3 of Schedule 1 to the 2001 Act. Schedule 4 to the 2001 Act headed “Amendments relating to savings and transitional matters” inserted a new cl 9 into Schedule 6 Part 18C of the 1987 Act – a part which, in turn, dealt with savings and transitional matters. The new cl 9 relevantly provided:

“9 Amendments relating to common law damages
(1) An amendment made by Schedule 1 to the Workers Compensation Legislation Further Amendment Act 2001 applies in respect of the recovery of damages after the commencement of the amendment (and so applies even if the injury concerned was received before the commencement of the amendment) but does not apply in respect of the recovery of damages if proceedings for their recovery were commenced in a court before the commencement of the amendment.”

43 The primary judge concluded that s 44(1)(d1) was an amendment of a procedural nature, but that clause 9 precluded the operation of the common law principle that procedural amendments apply to all actions whether commenced before or after their enactment (cf Maxwell v Murphy (1957) 96 CLR 261 at 267 – 268; Ex Parte Palmer; Re McCabe (1967) 69 SR (NSW) 140 and Helensburgh Workers’ Club v Marshall [1984] 2 NSWLR 566).

44 As the plaintiff’s proceedings were commenced on 21 November 2001, before s 44(1)(d1) was inserted in the District Court Act by Schedule 1 to the 2001 Act, his Honour held she could not benefit from its enlargement of the Court’s jurisdiction.

45 Accordingly, although his Honour found the plaintiff was entitled to a verdict against the defendant in the sum of $910,658.00 he entered judgment in her favour only for $750,000.00, the amount limited by s 44(1)(a)(ii) of the District Court Act.

Issues on appeal

46 The plaintiff complains that the primary judge erred in holding that the jurisdictional limit of the District Court was $750,000.00. She also challenged the rate at which the primary judge awarded damages for future domestic assistance. As I have earlier noted, the rate which should be applied to calculate any future paid domestic assistance, has now been agreed at $22 an hour.

47 The defendant raises the following grounds of appeal:

(a) that the award in respect of non-economic loss was manifestly excessive;

(b) that in determining that the plaintiff would have obtained full time work in early 2003 the primary judge failed to make any or any proper allowance for vicissitudes with respect to return to the workforce;

(c) that the primary judge’s award for future domestic assistance was manifestly excessive;

(d) that there was no evidence to support the primary judge’s assessment for past domestic care assistance.

Consideration
Non- economic loss

48 An appeal from an assessment of damages for non-economic loss in relation to personal injuries from a judge sitting without a jury is to be determined in the same manner as an appeal from the exercise of discretion by a trial judge. An appeal court may only alter the trial judge’s decision if the judge acted on a wrong principle of law, misapprehended the facts or made “a wholly erroneous estimate of the damage suffered”: Moran v McMahon (1985) 3 NSWLR 700; (1985) Aust Torts Reports 80-762 at 719 and 723 per Priestley JA, with whom McHugh JA agreed, Jones v Bradley [2003] NSWCA 81 at [117] per Santow JA (with whom Meagher & Beazley JJA agreed); see also Diamond v Simpson (No 1) [2003] NSWCA 67; (2003) Aust Torts Reports ¶81–695 at [15] – [17]; Ghunaim v Bart [2004] NSWCA 28 at [100]; (2004) Aust Torts Reports 81-731.

49 The defendant accepted that in order to challenge the primary judge’s award of non-economic loss it had to identify an error within the terms of House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 – 505. In its written submissions the defendant conceded that it did not complain that the primary judge had taken into account irrelevant matters or failed to take relevant matters into account. Rather, the defendant complained that having reviewed the relevant material it was not clear how the primary judge assessed the figure of 80% “which was so far outside the appropriate range”. In oral argument, Mr Joseph SC, who appeared with Mr Dooley for the defendant on appeal but not at trial, submitted that the assessment of 80% for non-economic loss was manifestly unreasonable.

50 The defendant sought to contrast the plaintiff’s injuries with awards to paraplegics of non-economic loss as being in the range of 75% - 90% of a most extreme case depending upon complications. It acknowledged that Planet Fisheries Pty Limited v La Rosa [1968] HCA 62; (1968) 119 CLR 118 precluded this Court engaging in such a comparative exercise.

51 The defendant submitted that the top of the range for the plaintiff’s injuries was 60% of a most extreme case, being $148,150.00.

52 The exercise a primary judge is required to undertake in determining the severity of a plaintiff’s non-economic loss for the purposes of s 151G is neither scientific nor normative. While it is not wholly at large, it does, nevertheless, involve an exercise of discretion with which, as the defendant acknowledges, the Court will rarely intervene: see Southgate v Waterford (1990) 20 NSWLR 427 at 440 – 441.

53 It was unnecessary for his Honour to give precise reasons why he selected the figure of 80% as the proportion the plaintiff’s non-economic loss bore to “a most extreme case”. As this Court said in Southgate v Waterford, above, (at 442):

“… in the familiar task of assigning money sums to the intangible claim for general damages a point is reached where further reasoning is impossible. It is necessary to make a determination which is insusceptible to entirely logical exposition … that determination rests upon the judge’s finding and his or her reaction to those findings, drawing upon the judge’s general experience.”

54 The same proposition was expressed by Handley JA (with whom Kirby P and Priestley JA agreed) in Dell v Dalton (1991) 23 NSWLR 528 at 533 where his Honour observed in respect of a trial judge’s conclusion for the purposes of assessing non-economic loss pursuant to s 79(1) of the Motor Accidents Act 1988 (NSW) (relevantly in like terms to s 151G(3) of the 1987 Act) that:

“… the ultimate finding that a particular case is or is not ‘a most extreme case’ will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation and estimation, calling for the exercise of common sense and judgment.”

55 The defendant conceded that the primary judge reviewed the relevant material in order to reach his determination of non-economic loss. In its written submissions its complaint was confined to the proposition that it was not clear how his Honour assessed the figure of 80%. As Southgate v Waterford makes plain, when his Honour reached that stage of the s 151G exercise he was required to make a determination which was “insusceptible to an entirely logical exposition”. It rested upon his findings and his reactions to those findings drawing upon his general experience.

56 The facts to which his Honour referred included the fact that prior to the accident the plaintiff had been a highly active woman engaged in ten pin bowling at club and competition level, training cricketers for the Balmain District Cricket Club and was an official scorer for grade cricket matches. She also did squash and undertook tapestry and cross-stitch, activities she had difficulty concentrating since her injury. She had been an active participant in the workforce save for a period during which she attended to her children.

57 Following the accident the plaintiff was unable to engage in the activities to which I have referred. The relationships within her family had become strained as she was less patient with her family than previously. She and her husband slept in separate rooms. She was unable to perform most of the domestic duties she had done prior to her accident. Her social and recreational activities were limited to shopping excursions with the occasional visit to a restaurant but otherwise there was not much activity in her life.

58 She was able to mobilise if she used either crutches or a wheelchair. Otherwise her activities were confined to attendances upon medical practitioners and receiving pain and psychological counselling on a regular basis. Based upon those findings the trial judge had concluded the plaintiff was permanently and totally incapacitated for work and permanently incapable of carrying out, to the extent she had prior to the accident, her domestic activities.

59 In oral submissions, as I have mentioned, the defendant’s counsel submitted that the primary judge’s finding on non-economic loss was “manifestly unreasonable”.

60 Having regard to his Honour’s findings of fact and conclusions concerning the extent of the plaintiff’s disabilities, I am unable to infer that his Honour has failed properly to exercise the discretion s 151G(3) reposed in him: cf House v The King, above, at 505. His adoption of 80% was extremely high and probably at the extreme higher end of the appropriate range. Nevertheless, in my opinion it did not exceed it.

61 This ground of appeal should be rejected.

Future economic loss

62 The defendant submits that the primary judge’s conclusion that the plaintiff would procure full time employment accepted as a certainty what was, at best, a possibility or the loss of a chance. The defendant contended that in assessing damages for future loss of earning capacity his Honour was required to consider first, whether the capacity had been lost and, secondly, whether that loss of capacity would be productive of financial loss: see Graham v Baker [1968] HCA 48; (1961) 106 CLR 340 at 346 – 347; Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 [7] – [8]. The defendant complained that the primary judge erred in relation to the second matter.

63 The defendant submitted that the primary judge fell into the error identified in Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 302 in that his Honour did not assess the chance of the plaintiff obtaining full time employment, let alone the chance of that employment being retained. The defendant also complained that the primary judge erred in assuming that the plaintiff would procure full time employment from the beginning of 2002, that is to say shortly after the defendant’s ownership of the store in which the plaintiff was injured ceased.

64 The defendant argued that there was no evidence that the plaintiff would have been any more successful in obtaining full time employment after Coles took over the defendant’s stores than she had been with the defendant prior to her accident. Nor was there any evidence that there were full time positions available in other similar stores.

65 At the time the plaintiff was injured she was working part time, twenty hours a week. When the defendant sold its stores in November 2001 the store at which the plaintiff had been working was taken over by Coles. There was evidence that Coles retained staff employed by the defendant although the staff levels had decreased by the time of trial through natural attrition.

66 There was some evidence that full time employment was available in the groceries sector, being that in which the plaintiff was previously employed. This evidence came from her husband who had also worked for the defendant prior to the Coles takeover. He had taken redundancy in April 2001 and found employment at Woolworths two months later. He said he obtained part time employment at Woolworths because he had to take his wife to doctors and the like. He said that had she not been injured and had been working herself he would have been working full time.

67 The defendant submitted that little weight could be placed on this evidence as the plaintiff’s husband had been employed as a sign writer by Franklins and had only been able to obtain work of a part time kind delivering groceries, first for Woolworths and then for Campbell’s Cash & Carry.

68 Ms Norton SC who appeared with Ms Fraser for the plaintiff on the appeal but not at trial, submitted that the primary judge had not erred in the respects identified by the defendant. She submitted that the primary judge was entitled to take into account the fact that the plaintiff had worked full time for most of her employment history. While acknowledging that the primary judge was required to take into account the possibility that she might be unemployed the plaintiff submitted that his Honour had done so in reducing the amount he allowed for future economic loss by 15% to allow for vicissitudes. The plaintiff also submitted that the primary judge had allowed for the period from March 2001 until the start of 2002 for the period during which the plaintiff might have sought, but not have been successful, in obtaining full time employment.

69 The assessment of damages for future economic loss involves reference to future or hypothetical events. It was described as “the process of estimation of possibility” in Malec v J C Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 at 643 per Deane, Gaudron and Gummow JJ. This is, as Santow JA has pointed out, “necessarily an imprecise matter of estimation, carried out within broad parameters …”: Donald v McKeown [2004] NSWCA 285 at [38].

70 The primary judge was entitled to take into consideration the fact that the plaintiff had an employment history which demonstrated a consistent pattern of full time employment, save for the period when she had cared for her children: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 143 per Gleeson CJ, Gummow, Kirby and Hayne JJ.

71 While it is the case that immediately prior to the accident she had worked for some years in a part time capacity, she had sought full time work in early 2001 although she had not been successful in procuring it as at the date she was injured. There was some evidence that full time work was available to the extent that the plaintiff’s husband said (and was not contradicted) that he had not been caring for his injured wife he would have been working full time. Although it is true he did not work in precisely the same area of the grocery business as his wife (he was a sign writer for Franklins for many years and then obtained employment delivering groceries), his evidence afforded some basis, in my opinion, from which the primary judge could infer that full time employment was available in the grocery sector.

72 I accept that the primary judge was required to determine the possibility or chance of the plaintiff obtaining full time employment. In my opinion, his Honour took account of the chance that the plaintiff would not obtain full time employment in the 15% for vicissitudes he deducted from her future economic loss.

73 A discount for contingences or vicissitudes takes account of “matters which might otherwise adversely affect earning capacity” (Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485 at 497 per Dawson, Toohey, Gaudron and Gummow JJ) including, among other matters, the possibility of unemployment as well as sickness, accident and industrial disputes.

74 In my view, the plaintiff’s submission that the discount for vicissitudes sufficiently accommodated the risk that the plaintiff would not find full time employment and that a period of time might elapse before she procured such work is correct. His Honour’s estimate was within the broad parameters to which Santow JA referred in Donald v McKeown.

75 This ground of appeal should be rejected.

Past domestic assistance

76 The defendant complained that the primary judge’s conclusion that the plaintiff was entitled to s 151K damages for the past at the rate of 21 hours a week in addition to the paid domestic assistance the workers compensation insurer had provided, failed to have regard to what was contended to have been the “effective cross-examination of the plaintiff’s husband”, which cross-examination was said to have revealed the plaintiff’s claim to have been excessive.

77 In my view this complaint can be disposed of by noting that the plaintiff’s original claim for past domestic assistance was thirty-five hours a week. The primary judge reduced that to twenty-one hours a week. It may well have been that this was because his Honour accepted that the defendant’s cross-examination of the plaintiff’s husband was successful but, not as successful as the defendant would wish. Nothing the defendant has submitted persuades me that this Court should disturb a conclusion his Honour based upon his assessment of Mr Burns’ evidence.

78 The defendant also submits that his Honour erred in his application of Sullivan v Gordon. The defendant conceded that that case was authority for the proposition that an injured plaintiff may be awarded Griffiths v Kerkemeyer damages reflecting pre-accident dependency of third parties where there was an obligation on the part of the injured person to meet the third party needs, for example, in the case of young children. The defendant submitted there were no such obligations to third parties in this case.

79 In his oral submissions, Mr Joseph SC conceded that Sullivan v Gordon was binding upon this Court although he properly drew the Court’s attention to the fact that the High Court has granted special leave to appeal on 10 December 2004 from the decision in CSR Limited & Anor v Thompson [2003] NSWCA 329; (2003) 59 NSWLR 77.

80 In Sullivan v Gordon (above at 331 – 332 [59]), Beazley JA (with whom Spigelman CJ, Powell and Stein JJA agreed) held that a “plaintiff’s accident–caused need” which is compensated, inter alia, by virtue of a Griffiths v Kerkemeyer award included a plaintiff’s lost capacity to care for a child or children. Mason P held (at 322 [2]) that “the accident–caused need of a disabled plaintiff that is compensable should not be confined to self-care”. His Honour gave several cogent reasons for this proposition. It is unnecessary to canvass all of them. It is sufficient to note that they included that to which the primary judge referred, namely, that “for many women and some men, their own needs extend to care for other members of the family as naturally as they extend to the capacity to attend to their own personal functions”. The evidence given by the plaintiff and her husband demonstrates that such was the case in their household.

81 In CSR Limited & Anor v Thompson, above, the appellants submitted that Sullivan v Gordon was wrongly decided and sought leave to re-argue it in this Court. That application was rejected on the basis that it would be undesirable for this Court to allow a question to be reopened which had been recently determined by a specially constituted five judge bench: CSR Limited & Anor v Thompson, above, at [12], per Ipp JA (with whom Handley and Sheller JJA agreed).

82 In my opinion, Sullivan v Gordon is not, as the defendant submitted, limited to cases where there is an obligation to care for young, dependent children. Justice Beazley’s reasons dealt with dependent children because it was the plaintiff’s incapacity to care for her children which was the basis for her Griffiths v Kerkemeyer claim in that case. I do not understand her Honour’s reasons to be limited, however, to the proposition that the plaintiff’s accident - caused needs to be compensated pursuant to Griffiths v Kerkemeyer may not extend to others towards whom an injured plaintiff has, at least, a moral obligation. Mason P specifically recognised that a disabled plaintiff’s “accident–caused need” extended to compensating for the interrupted capacity to do “general housework for the benefit of a spouse or children in a household family” (at 332 [6]).

83 The defendant also submitted that the proposition that the services the plaintiff had performed for her husband and son should have been excluded from her Griffiths v Kerkemeyer claim emerged from this Court’s decisions in Roads & Traffic Authority of New South Wales v Lolomanaia [2001] NSWCA 268; (2001) 34 MVR 249 at [49] – [50] and Matchan v Lyons (2003) 40 MVR 466; (2003) NSWCA 384 at [4] – [5].

84 In the first of these cases, Hodgson JA (with whom Davies AJA agreed) held (at [48]) that compensation to an injured wife for the economic value of her lost capacity to maintain the house and garden should take account of the circumstance that, in the fair give and take of domestic arrangements, she did not need to undertake those tasks or pay anyone to undertake them although her compensation should include an amount referable to the contingency that she might need that capacity in the future. His Honour did not refer to Sullivan v Gordon. Fitzgerald AJA (at [61]) did not consider the case provided a suitable occasion for an analysis of the principles governing awards for lost capacity to perform domestic activities.

85 Hodgson JA repeated his views in Matchan v Lyons (at [4] – [5]). Again, his Honour did not refer to Sullivan v Gordon nor to CSR Limited & Anor v Thompson which had been delivered a month or so earlier. Palmer J (with whom Cripps AJA agreed) did not consider the point as, in his Honour’s view (at [49] – [52]), the injured plaintiff in that case was not entitled to any damages by way of domestic assistance.

86 Hodgson JA also repeated his “give and take” view in CSR Limited v Clydesdale [2003] NSWCA 339. Again, his Honour did not refer to Sullivan v Gordon nor to CSR Limited & Anor v Thompson. On that occasion, Meagher JA and Foster AJA simply agreed with his Honour.

87 I do not understand Hodgson JA’s decisions concerning the “fair give and take of family life” to be inconsistent with Sullivan v Gordon, particularly in light of the fact he has never said his view represented a departure from that decision. Rather, I understand his Honour to be saying that where domestic care is given in that manner such services cannot be said to be part of the “plaintiff’s accident – caused need”.

88 Nothing in Hodgson JA’s “fair give and take of family life” approach in my view precluded the primary judge from applying Sullivan v Gordon to the facts of the present case.

89 I would reject this ground of appeal.

Future domestic assistance

90 The defendant submitted that the same errors were involved in the primary judge’s calculation of fourteen hours a week for the plaintiff’s future domestic assistance as were identified in relation to past domestic assistance. As I have rejected those grounds when dealing with past domestic assistance it follows that the ground of appeal related to future domestic assistance must also fail.

91 Insofar as the defendant accepts that the primary judge applied the incorrect hourly rate to future domestic assistance, it says that the correct figure of $22 an hour extends only to that portion of future domestic assistance which would be professionally delivered and submitted that that rate should only be allowed for four hours a week.

92 The plaintiff draws attention to the evidence given by Ms Kennedy-Gould to the effect that the plaintiff would need eight hours paid domestic assistance.

93 The primary judge referred to Ms Kennedy-Gould’s reports and to the criticism expressed of her calculation of eight hours a week in the defendant’s reports. It appears to me that in calculating that the plaintiff would need fourteen hours a week future domestic assistance his Honour must have accepted Ms Kennedy-Gould’s estimate of eight hours a week paid domestic assistance. In those circumstances I accept the plaintiff’s submissions that her damages for future domestic assistance should be calculated at the rate of $22 an hour in respect of eight hours a week with six hours a week being allowed at the lower rate of $19 an hour.

94 The plaintiff did not provide a calculation based on these rates and, for reasons which appear below, it may not make any difference in the ultimate resolution of the appeal. The consequence of these reasons on this issue is that the defendant’s ground of appeal related to future domestic assistance must be rejected and the plaintiff’s grounds of appeal relating to future domestic assistance allowed.

Jurisdictional limit

95 The consequence of the disposition of the appeal is that the plaintiff is entitled to a verdict which exceeds that assessed by the primary judge. This raises the plaintiff’s challenge to the primary judge’s conclusion that he could not enter a verdict in her favour for more than $750.000.00.

96 The plaintiff argued that cl 9 of Schedule 6 to the 2001 Act was limited to apply to those amendments made by Schedule 1 to the 2001 Act which applied to limit the recovery of damages but did not apply to those amendments effected by Schedule 1 (including that which inserted s 44(1)(d1) in the District Court Act) which were procedural in nature. She argued that the common law principles that procedural amendments operated retrospectively applied to s 44(1)(d1).

97 Ms Norton conceded that a similar point had been decided adversely to her submission in Dubbo Stock & Station Agents Pty Limited v Laws [2004] NSWCA 336. In that case, Sheller JA (with whose judgment Giles JA and I agreed) rejected (at [28] – [29]) an argument that the amendments made by Schedule 1.3 to the 2001 Act were not the subject of the transitional provisions on the basis that the transitional provisions related only to the provisions to the Workers Compensation Act.

98 The decision in Dubbo Stock & Station Agents Pty Limited v Laws does not deal with the argument that the plaintiff advances in this case. However, in my view, the plaintiff’s argument fails. Clause 9(1) should be given its literal meaning which, in my opinion, also accords with the legislative purpose. On that basis any amendment made by Schedule 1 to the 2001 Act only applies in respect of the recovery of damages after the commencement of the amendment but does not apply in respect of the recovery of damages where the proceedings for their recovery were commenced prior to the commencement of the amendment.

99 The 2001 Act which inserted s 44(1)(d1) into the District Court Act came into operation on 1 January 2002. The plaintiff’s action was commenced on 21 November 2001. Accordingly, the plaintiff cannot rely upon s 44(1)(d1) as giving the District Court unlimited jurisdiction in respect of her claim.

100 The plaintiff also advanced a ground of appeal to the effect that the primary judge had erred in any event in determining that the jurisdictional limit of the District Court was $750,000.00. No arguments were advanced to support that ground of appeal and I have not considered it.

101 The plaintiff’s ground of appeal relating to the District Court’s jurisdiction must be rejected.

Conclusion

102 The consequence of these reasons is that the defendant’s appeal fails entirely. The defendant should bear the costs of its appeal.

103 The plaintiff’s appeal succeeds to the extent of her claim for domestic assistance. There was little oral argument in respect of the plaintiff’s appeal all grounds of which were largely determined on the written submissions. Accordingly, in my view, any costs order should be limited to the preparation of those written submissions.

104 The effect of this decision is that although the plaintiff’s damages award will be increased to the extent of the recalculation of future domestic assistance component, she is unable to recover more than $750,000.00. I have included in the orders I propose an order giving the parties leave to submit a recalculation of the future domestic assistance component. I will leave it to the parties to determine whether, in all the circumstances, they wish to proceed to that step.

Orders

105 I propose the following orders:

(1) Defendant’s appeal dismissed with costs.

(2) Plaintiff’s appeal allowed as to grounds 4 and 5, but otherwise dismissed.

(3) The parties to have leave (if they so desire) to bring in within 14 days of the date of these orders Short Minutes of Order calculating, on the basis of the reasons given, the amount the plaintiff ought to have been awarded by way of damages for future domestic assistance.

(4) Plaintiff to pay the costs of grounds 1 – 3 of her Notice of Appeal, such costs to be limited to the preparation of the written submissions relating to these grounds of appeal.

(5) Defendant to pay the costs of grounds 4 and 5 of the plaintiff’s Notice of Appeal, such costs to be limited to the preparation of the written submissions relating to these grounds of appeal.

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